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281 THE DECLINE OF MANUS-MARRIAGE IN ROME by SUSAN E. LOOPER-FRIEDMAN(Columbus, Ohio) Introduction In the study of Roman family law, the puzzling question emerges - why did the incidence of manus-marriage decline? In order to answer this question we first need to know when the practice declined. Unfortunately, our evidence on both questions is scant, and there is much disagreement among modern histor- ians on the interpretation of what little evidence we do have. Although there is debate about the exact chronology of the evolution of manus-marriage, which will be more fully discussed below, a general picture can be drawn which would not be disputed. It seems likely that nearly all marriages at the time of the XII Tables were cum manu'. Watson believes this was still the case in the second century B.C.2. By the end of the first century B.C. the situation was mixed; there is evidence of both forms of marriage being practised 3. After Cicero, there is virtually no mention of manus in any of the literature, and the institution appears to have been obsolete by Gaius' time. We can say, then, generally that the incidence of manus-marriage began to decline in the late Republic and had virtually disappeared by the time of the Empire. Before we pursue the question of why manus declined, we should examine what the institution was all about. Manus Manus was legally quite similar to potestas; it was the power a husband had over his wife. In a marriage cum manu, the wife was in the hand - manus - of her husband or of his paterfamilias. The wife left the potestas of her father, entered into the family of her husband, and was in the position of a daughter to her husband. Any property she brought into the marriage vested in her husband or his paterfamilias and her rights of succession were equal to those of her children. Thus, the legal effects of the creation of manus were similar to those of adoption. Although manus could not be created separately from a marriage, marriage could be created without manus4. In a marriage sine manu, the wife remained in 1. P.E. Corbett, The Roman Law of Marriage (1930),at 89-91;A. Watson, The Law of Persons in the Later Roman Republic( 1 967),at 19; A. Watson, Rome of the XII Tables (1975), Ch. 2. 2. Watson, Persons, at 23-29. 3. See Laudatio Turiae 1 :14ff; Cicero, pro Flacco 34.84. 4. Laudatio Turiae I: 14. 282 the potestas of her paterfamilias, or in tutela if she were sui iuris. She retained her original agnatic ties and through them her right to succession from her father. Thus, she remained legally independent from her husband and kept her own ' property. Acquisition of Manus There were three ways by which a woman could come into the manus of her husband: confarreatio, coemptio and usus. Although there is no ancient text which expressly says that these methods were set out by the XII Tables, the argu- ment that they were is a convincing one 5. To begin with, there are only four known texts which list these three methods. The texts are of widely divergent origin, yet all correspond to a remark- able degree. First, all four texts list them in the same order - usus, confarreatio, coemptio - an order for which there is no logical justification. Second, all the texts list them in the same grammatical form when other constructions would have been equally appropriate. Finally, all use the word far (spelt) or farreum (spelt cake) rather than the more common term, confarreatio. The most convincing explanation for these similarities is that each of the texts derived from a single source more ancient than any one of them. The source must have been considered quite authoritative, hence the reluctance to alter the word- ing or the grammatical construction. It must also have been widely known to have been quoted by four different writers at different times. The only text known to us that fits this description is the XII Tables. Accepting this argument, it is clear that as early as the time of the XII Tables manus was created by one of these three methods and that the creation of manus was distinguished from the marriage itself. Confarreatio was a religious ceremony that created both manus and the mar- riage itself. The ceremony consisted of a sacrifice of spelt cake (farreum) to Iup- piter farreus and was presided over by the flamen dialis and the pontifex max- imus in the presence of ten witnesses'. It would appear that confarreatio was restricted to the marriage of patricians. The required presence of the flamen dialis and pontifex maximus, who were nec- essarily patricians, and the reported hostility between plebeians and patricians, would indicate that this was true g. It was required that certain priests be married by confarreatio and that they be born of parents who were married by confarreatio. Although there is no evi- dence that the ceremony was restricted to these priests, by the time of Cicero, confarreatio was chiefly associated with the marriage of such men 9. Coemptio was a form of transfer per aes et libram applied to marriage by 5. A. Watson, 'Usu, Farre(o), Coemptione', Studia et Documenta Historiae et Iuris, 29 (1963), 337. 6. Gaius, Institutiones 1.110;Arnobius, Adversusgentes 4.20; Boethius, II ad Topica Ciceronis 3.14; Servius, VergiliGeorgicon 1.3. 7. Gaius, Inst. 1.112. 8. See Watson, Roman Private Law Around 200 B.C. (1971), 18. 9. Cicero, pro Flacco 34.84; cf. Watson, Persons, at 24. .

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